In a disturbing bit of news getting out to today in the Vergara v Calif. case, it appears that data quoted by L.A. Superior Court judge Rolf Treu doesn’t actually exist. In short, there is no data to back up his ruling on tenure.

Jordan Weissmann of Slate, called Arizona State professor emeritus of Education David Berliner, on Wednesday, to check out the quote attributed to him regarding 1% to 3% of the states teachers being “grossly incompetent.” Here is what Weissmann reported:

“I pulled that out of the air,” says Berliner, an emeritus professor of education at Arizona State University. “There’s no data on that. That’s just a ballpark estimate, based on my visiting lots and lots of classrooms.” Weissmann said the Berliner never used the words “grossly ineffective.” In fact, Berliner is quoted as saying he has never encountered a grossly ineffective teacher.

The 1% to 3% figure came from the plaintiffs lawyers, in a deposition of Berliner, who emailed a portion of the transcript to Weissmann:

Lawyer: Dr. Berliner, over four years value-added models should be able to identify the very good teachers, right?

Berliner: They should.

Lawyer: And over four years value-added models should be able to identify the very bad teachers, right?

Berliner: They should.

Lawyer: That is because there is a small percentage of teachers who consistently have strong negative effects on student outcomes no matter what classroom and school compositions they deal with, right?

Berliner: That appears to be the case.

Lawyer: And it would be reasonable to estimate that 1 to 3 percent of teachers fall in that category, right?

Berliner: Correct.”

Berliner did not offer those figures. This portion of the transcript clearly pins that figure on the plaintiff’s lawyers.

Treu, however, used that to do some simple math. Out of 275,000 or so California teachers, between 2,750 and 8,250 are, in his words, unsupported by fact, “grossly inadequate.

Diane Ravitch, a Reasearch Professor of Education at New York University, and a staunch defender of good teaching, in a blog posting on Thursday, also illuminated the flaws in Treu’s ruling. She quoted Weissmann’s article in her blog posting.

In her blog, Ravitch ends with a quote from Weissmanns article. Stuart Biegle, a law professor and education expert at UCLA, wrote in an email to Weissmann:

“If 97 to 99 percent of California teachers are effective, you don’t take away basic, hard-won rights from everybody. You focus on strengthening the process for addressing the teachers who are not effective, through strong professional development programs, and, if necessary, a procedure that makes it easier to let go of ineffective teachers.”

How a “statistic”, literally pulled out of thin air, made up, a guesstimate, with no data, scientific or otherwise, to back it up, can be used by a judge to justify his ruling is way beyond a trip down the rabbit hole. Appeal, anyone? $30 t0 $50 million later, my guesstimate, and we might have some resolution of all this.